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which was refused by the court. In Febru- | ganized or chartered by the legislature, or ary, 1886, Karrick V. Z. Riggs, Francis B. that might thereafter be chartered, any porRiggs, and William C. Riggs, of New York, tion of whose routes, as authorized by their illed intervening petitions, alleging owner different charters and amendments, should ship of second mortgage bonds, and praying be within the lines or routes laid down in to be admitted as parties entitled to share in section 4, should have the right and privilege the relief prayed for.
of constructing that part of the line embraOn December 7, 1887, after final hearing, a ced by their charter, on giving notice to the decree was filed dismissing the bills. On trustees of the internal improvement fund of November 6, 1889, an appeal was allowed to their full acceptance of the provisions of this court.
said act, specifying the part of the route The principal grounds for relief stated in they proposed to construct. The Florida the bill were illegality in the form and man Railroad Company, it is undeniably shown, ner of the sale, and fraud and collusion be gave such notice of acceptance, specifying tween Dickerson, Yulee, and others, the pur the line from Amelia Island to Cedar Keys chasers, sufficient to vitiate the sale, even if as the part of the route which it proposed it were valid in form. The charge of illegal- | to construct, and on June 11, 1855, entered ity in the sale of the railroad is based on into a contract with Joseph Finegan & Co., two particulars: First, that the power of whereby the latter agreed to construct a sale given to the trustees of the internal im- railroad from Fernandina, on Amelia Island, provement fund in the act approved January to Cedar Keys, in all respects conformable to 6, 1855, entitled "An act to provide for and the requirements of the general improvement encourage a liberal system of internal im- | act of January 6, 1855. provements in this state," did not author Afterwards. in December, 1855, the legisize a sale, even in event of a default, until lature authorized the Florida Railroad Comafter the completion of the railroad in ques- pany to "construct the railroad from Amelia tion, and that the said railroad was not com Island, on the Atlantic, to the waters of pleted at the time of the sale; and, secondly, Tampa Bay, in South Florida, with an extenbecause the persons who officiated as such sion to Cedar Keġ, in East Florida, under trustees and made the sale were not law the provisions of the act approved January fully constituted officers of the state, and 6. 1855." their action was consequently null and void. The line between Amelia Island and Cedar
The original company was incorporated by Keys was completed in 1861. an act approved January 8, 1853, entitled The general improvement act of January 6, "An act to incorporate a company to con 1855, authorized companies accepting its prostruct a railroad across the peninsula of visions to issue first mortgage bonds at the Florida, under the style of the Florida Rail rate of $10,000 per mile, which bonds were road Company." The route of the railroad to be countersigned by the state treasurer was thus designated in the second section of and the trustees. It was further provided the act: “That the said railroad shall com that the railroad company should pay to the merce in East Florida, upon some tributary trustees of he improvement fund 50 per of the Atlantic Ocean, within the limits of cent. of its net receipts every six months, to the state of Florida, having a sufficient out be applied by the trustees towards the pay, let to the ocean to admit of the passage of ment of the interest on the bonds of the sea steamers, and shall run through the east company, and should further pay, after the ern and southern part of the state in the completion of the road, to the trustees, at most eligible direction to some point, bay, | least one-half of 1 per cent. on the amount of arm, or tributary of the Gulf of Mexico in indebtedness or bond account as a sinking South Florida, south of the Suwanee river, | fund. having a sufficient outlet for sea steamers, Upon the failure of any railroad company to be determined by a competent engineer, accepting the provisions of the act to prowith the approval of a majority of the di vide interest on the bonds issued by it and rectors of the said company." Under this the percentage for the sinking fund, it was. proviso, a route was selected beginning at made the duty of the trustees, after the expira. Fernandina, on Amelia Island, and termi tion of 30 days from said default or refusal, nating at Cedar Keys, being on a bay of the to take possession of said railroad and all its Gulf of Mexico, and south of the Suwanee property, and to advertise the same for sale river.
at public auction to the highest bidder, eiAfterwards the general improvement act ther for cash or approved security, as they of January 6, 1855, was passed, in the fourth might think most advantageous; the pro. section of which were enumerated certain ceeds to be applied to the purchase and canlines of railroad as proper. improvements to celing of outstanding bonds, but the purbe aided in manner provided in said law, chasers of the road to be bound to continue and among them "a line from Amelia Island, the payment of 1 per cent. into the sinking on the Atlantic, to the waters of Tampa Bay, fund until all the outstanding bonds should in South Florida, with an extension to Cedar be discharged. Key." The fifth section of the act provided In pursuance of these provisions and of that the several railroad companies then or the contracts of June, 1855, the Florida Rail.
road Company issued and paid over to the , by receiving, the interest and the sinking contractors and their successors, from time tund charges on the first mortgage bonde to time as the work progressed, all its first from March, 1861, to November 5, 1863, when mortgage bonds, secured by a mortgage on default was made. its railroad from Fernandina to Cedar Keys, The contractors agreed to build the road as and also a portion of its bonds, secured by a an entirety from Fernandina, or Amelia Ismortgage which was a second lien on the land, to Cedar Keys, and accepted in pay. railroad from Fernandina to Cedar Keys, but ment, and sold to the public, bonds of the a first lien on certain town sites and other company, secured by a first mortgage there lands belonging to the company.
As beretofore stated, the road from Fernan The trustees of the improvement fund not dina to Cedar Keys was completed in 1861, only recognized these first mortgage bonds as and, the company having failed to pay its securities coming within the provisions of the interest, the trustees of the internal improve act of 1855 by receiving and applying the inment fund took possession of the road, and terest paid them by the company, but at last, sold it at auction to the highest and best bid in 1866, took possession of the road and frander, as provided for in the act of 1855.
chises, as they were empowered to do in the The contention now is that such sale was act, and sold them to parties, who organized void, because the road between Fernandina a new company. and Cedar Keys was not the road designated Finally, the state of Florida, by its act of and pointed out, in the various acts of the January 18, 1872, recognized the new compalegislature, as the one on whose completion oy as one owning the property formerly be and after default the trustees were authorized longing to the Florida Railroad Company, to sell; that the road intended should extend and authorized its change of names. from Fernandina to Tampa Bay.
The second ground relied on by the appelWe think that this contention has not been lants, as invalidating the regularity of the successfully maintained. No doubt, some of sale, is the allegation that the persons who the language used in the act of 1853 and in acted as trustees of the internal improvement the amendatory act of December, 1855, might *fund, in taking possession of the railroad and be read as indicating or designating Tampa / selling it, were not legally entitled to act as Bay as the western terminus of the railroad, such; that they were not really officers of the and Cedar Keys as the terminus of a branch state of Florida. or extension. Yet the history of the legisla The second section of the act of January 6, tion and of the transactions thereunder sat- 1855, declares that the governor of the state, isfactorily shows that such a construction was the comptroller of public accounts, the state not put upon the acts of incorporation, either treasurer, the attorney general, and the regisby the company itself, by the contractors who ter of state lands, and their successors in ofconstructed the road, by the trustees of the fice, shall constitute the trustees to act under internal improvement fund, or by the state of the provisions of the act. And we are asked Florida.
to take notice of the historical facts of the As we have seen, the company, in accepting Civil War, and that the state government of the benefits of the act of January 6, 1855, Florida, in 1866, was declared by the act of designated the road which they intended to March 2, 1867, to be illegal, and that between build as extending from Amelia Island in the the outbreak of the Rebellion and the adopdirection of Tampa, as far as a point proper tion by the people of Florida, in May, 1868, for divergence to Cedar Keys, and from said of a new constitution, there was an interim diverging point to Cedar Keys. In the same or interregnum, during which there were no letter of acceptance it was further said that, state officers in Florida qualified and compe If the amendment to their charter then pend- tent to exercise the powers and duties of ing in the legislature (meaning the act of trustees of the internal improvement fund in December, 1855) were granted, they would accordance with the provisions of the act of also const: uct the balance of the road to 1855. Tampa.
This contention is disposed of by referring Before the act of December, 1855, was to the well-settled doctrine, affirmed in re passed, the company contracted for the con peated decisions of this court, that “the acts struction of the road from Fernandina to Ce of the several states, in their individual cadar Keys, and agreed to pay the contractors pacities and of their different departments of with first mortgage bonds upon that road, and government,-executive, judicial, and legisthese bonds and mortgage were issued ac lative,-during the war, so far as they did cordingly. Subsequently the company made not impair, or tend to impair, the supremacy separate contracts for the construction of the of the national authority or the just rights route from the diverging point to Tampa, and of citizens under the constitution, are, in genput a distinct mortgage upon it.
eral, to be treated as valid and binding. The The railroad company, upon the completion existence of a state of insurrection and war of its road to Cedar Keys, and the trustees of did not loosen the bonds of society or do away the improvement fund recognized this as a with civil government or the regular adminroad completed under the provisions of the istration of the laws. Order was to be pre act of 1855; the one by paying, and the other served, police regulations maintained, crime
prosecuted, property protected, contracts en view of such condition and of thstare of forced, marriages celebrated, estates settled, the country, the price realized was not inand the transfer and descent of property reg. | adequate. ulated, precisely as in time of peace. No one The court below, in dismissing the bills, that we are aware of seriously questions the proceeded chiefly on the ground that the validity of judicial or legislative acts in the complainants had lost whatever rights they insurrectionary states touching these and kin might have had by their gross laches. In dred subjects when they were not hostile in this view of the case we fully concur. the purpose or mode of enforcement to the Robert H. Johnson did not Ole his bill till authority of the national government, and did nearly seven years had elapsed from the not impair the rights of citizens under the time of the sale, and he gives no satisfactory constitution." Horn V. Lockhart, 17 Wall explanation of his delay. Within that time, 570.
in May, 1869, a mortage had been issued by *In Sprott v. U. S., 20 Wall. 459, the same the new company to Stewart and Conkling as views were expressed: “The insurgent states trustees, and who are parties defendant by merely transferred the existing state organi intervention. This mortgage was to secure zations to the support of a new and different an issue of bonds amounting to $2,300,000, national head. The same constitutions, the the proceeds of which have gone into the same laws for the protection of property and reconstruction and equipment of the railpersonal rights, remained, and were adminis- | road. Those trustees and the purchasers and tered by the same officers. These laws, neces holders of those bonds must be deemed sary in their recognition and administration bona fide purchasers, without notice of the to the existence of organized society, were the claim of the complainants. The other comsame, with slight exceptions, whether the au- plainants, Corcoran and Riggs, did not come thorities of the state acknowledged allegiance into the case till it had been pending for to the true or false federal power. They years. Neither do they or Johnson give any were the fundamental principles for which explanation of their long delay. They do civil society is organized into government in not aver any concealment of the facts as all countries, and must be respected in their they existed at the time of the sale of the administration under whatever temporary road in 1866. They do not aver, much less dominant authority they may be exercised. prove, that they were in ignorance of those It is only when, in the use of these powers, facts, or that they were in anywise preventsubstantial aid and comfort were given, or ed or impeded from ascertaining the facts or intended to be given, to the Rebellion, when from instituting proceedings. the functions necessarily reposed on the state In Galliher v. Cadwell, 145 U. S. 368, 12 for the maintenance of civil society were Sup. Ct. 873, this court said: "In Harwood perverted to the manifest and intentional aid V. Railroad Co., 17 Wall. 78, a delay of five of treason against the government of the years on the part of stockholders in a railUnion, that their acts are void.”
road company in bringing suit to set aside Without further citation or consideration, judicial proceedings, regular on their face, we conclude that the act of the trustees in under which the railroad was sold, was held selling this railroad in November, 1866, can inexcusable. In Oil Co. v. Marbury, 91 U. S. not be impeached for want of power to act. 587, a director of a company who had loaned
It is next claimed on behalf of the ap money to it, and subsequently bought its proppellants that the sale and conveyance of the erty at a fair public sale by a trustee, was railroad were voida ble by reason of the al- | protected in his title as against the corporaleged fraud and collusion of the defendants tion, suing four years thereafter to hold him Yulee, Dickerson, and their associates, con as trustee of the property for its benefit, it spiring together to procure the default of the appearing that in the meantime the propos Florida Railroad Company in the payment of erty had increased rapidly in value. its interest, and thus to bring about the Brown v. County of Buena Vista, 95 U. S. sale of the road.
157, a county was held barred by its laches We do not feel constrained to enter at from maintaining, at the end of 7 years, a length into a discussion of the evidence ad suit to set aside a judgment fraudulently obduced under this part of the case. We have, tained against it; and that, too, though it however, examined the evidence, and con did not affirmatively appear that the supersidered it in the light of the verbal and print visors of the county had knowledge of the ed arguments on behalf of the appellants; existence of the judgment until about 20 but we are unable to see that the complain months before the commencement of the acants have overcome the direct, positive, and tion.
The cases proceed upon the responsive answers of the several defendants. theory that laches is not, like limitation, a As against those answers, the complainants mere matter of time, but principally a ques. have adduced very little, if any, satisfactory tion of the inequity of permitting the claim proof, The weight of the evidence, apart to be enforced,-an inequity founded upon from the evidential character of the an some change in the condition or relations swers, is clearly to the effect that the rail of the property or the parties.” In Johnston road, at the time of the sale, was in a v. Mining Co., 148 U. S. 360, 13 Sup. Ct. 585, thoroughly dilapidated condition, and that, in it was said: "The law is well settled that,
where the question of laches is in issue, the sie Wenie, his wife, to establish a trust in plaintiff is chargeable with such knowledge certain lands, and require defendants to conas he night have attained upon inquiry, vey them to complainant. The circuit court provided the facts already shown by him were sustained a demurrer to the bill, and dismisssuch as to put a man of ordinary intelligence ed the suit. Complainant appealed. on inquiry. This principle was applied in The appellant, who was the plaintiff below, Foster v. Railroad Co., 146 U. S. 88, 13 Sup. claimed to be possessed of the equitable title Ct. 28, in a case where a stockholder in a to certain lands, the legal title to which is in railroad company sought to set aside the the appellee Frederick T. M. Wenie, by virsale of a railroad, which had taken place ten tue of a patent issued by the United States years before, when the facts upon which he January 25, 1890. relied to set aside the sale were of record, •The relief sought by the bill is a decree and within easy reach. • Where prop- declaring the legal title to be held in trust for erty has been developed by the courage and the plaintiff, and requiring the defendant to energy, and at the expense, of the defendants, convey such title to him. courts will look with disfavor upon claims The lands in dispute constitute a part of of those who have lain idle while await- | what are known as the "Osage Indian Trust ing the results of tbis development, will re and Diminished Reserve Lands in Kansas," quire not only clear proof of fraud, but included within what was once the Ft. Dodge prompt assertion of plaintiff's rights.” military reservation, established June 22,
We are thus brought to the conclusion that 1868. They are lots 9, 10, 11, and 12 in sec. the appellants have not sustained their claim tion 25, township 26 S., of range 25 W., and that the action of the trustees in making the lots 14 and 15 of section 30, township 26 S., sale of the railroad was void, either from a range 25 W., in Ford county, Kan. mistake in interpreting the meaning of the The appellant made a homestead entry of statutes or from any want of power as these lands on the 1st day of October, 1881, official persons; that they have likewise fail. at the Larned, Kan., land office. This entry ed to show by preponderating evidence any was made under the assumption that the fraud or collusion on the part of Dickerson lands had been restored to the public domain and his associates in their purchase of the by the act of congress approved December Florida Railroad; and, finally, that they are 15, 1880, which declared that the Ft. Dodge precluded by the long and unexplained lapse military reservation was no longer needed for of time between the acts complained of and military purposes, and authorized the secre the institution of legal proceedings from tary of the interior to dispose of a part of maintaining such proceedings as against in the lands within that reservation to actual nocent third parties whose interests have be settlers under the provisions of the homecome involved.
stead law. 21 Stat. 311, c. 1. The decree of the court below dismissing The case turns on the construction of that the bills of complaint is affirmed.
act, the controlling question being whether congress intended to open to actual settlers
under the homestead laws such of the lands, (157 U. S. 46)
within the limits of the abandoned military FROST V. WENIE et ur.
reservation, lying north of the railroad track, (March 4, 1895.)
as were part of the Osage trust lands. The No. 172.
court below held that it did not. CONSTRUCTION OF STATUTES-REPEAL-VIOLATION
The principal ground of the decision was OF IndiaX TREATY-LANDS HELD IN TRUST. that a different interpretation is not required
1. Wlere two statutes cover, in whole or in by the terms of the statute, and would be inpart, the same matter, and are not absolutely ir consistent with the treaties between the Unit. reconcilable, the duty of the court-no purpose
ed States and the Osage Indians, and with to repeal being clearly expressed or indicated-is, if possible, to give effect to both.
the previously declared purpose of congress 2. Lands ceded by the Osage Indians to be in reference to the Osage lands. sold by the United States, and the proceeds held Before looking at the language of the act in trust for their benefit, were directed (21 Stat. 143, & 2) w be sold tr settlers "haring the quali
of December 15, 1880, it will be well to recall fications of pre-emptors on the public lands."
the history of these lands, as well as the rela. By a subsequent act (Id. 311) congress directed tions between the United States and the part of the lands belonging to the Ft. Dodge Osage Indians, as shown by treaties and by military reservation to be opened for settlement "under the homestead laws.' A small fraction legislative enactments. of these lands was included within the orerlap One of the articles of the treaty of June 2, ping limits of the ceded Osage lands. Held, that | 1825, between the United States and the this latter act, in the absence of an express repeal of the former one, should be construed as
Great and Little Osage tribes of Indians, esnot applying to the Osage lands, especially as the tablished a reservation in what is now the opposite construction would violate the trust es southern part of Kansas, which those Intablished by the treaty.
dians could occupy as long as they chose to Appeal from the Circuit Court of the Unit- do so. 7 Stat. 240. ed States for the District of Kansas.
By an act approved January 9, 1837, it was This was a suit in equity by Daniel M. provided: “Section 1. All moneys received Frost against Frederick T. M. Wenie and Jes from the sales of lands, that have been, of
may be hereafter, ceded to the United States the southern boundary of the state of Kan. by Indian tribes, by treaties providing for the sas." The consideration for this sale was investment or payment to the Indians, par the agreement of the United States "to pay ties thereto, of the proceeds of the lands ced the sum of three hundred thousand dollars, ed by them, respectively, after deducting the which sum shall be placed to the credit of expenses of survey and sale, any sums stipu- said tribe of Indians in the treasury of the lated to be advanced, and the expenses of ful United States, and interest thereon at the filling any engagements contained therein, rate of five per centum per annum shall be shall be paid into the treasury of the United | paid to said tribes semi-annually, in money, States in the same manner that moneys re clothing, provisions, or such articles of util. ceived from the sales of public lands are paid ity as the secretary of the interior may from into the treasury. Sec. 2. All sums that are e time to time direct." By the same article or may be required to be paid, and all moneys of the treaty it was provided that "said lands that are or may be required to be invested by shall be surveyed and sold, under the direcsaid treaties, are hereby appropriated in con tion of the secretary of the interior, on the formity to them, and shall be drawn from most advantageous terms, for cash, as pubthe treasury as other public moneys are lic lands are surveyed and sold under exdrawn therefrom, under such instructions as isting laws, including any act granting lands may from time to time be given by the presi to the state of Kansas in aid of the construc. dent." 5 Stat. 135.
tion of a railroad through said lands, but no In the act of July 22, 1854, establishing the pre-emption claim or homestead settlement offices of surveyor general of New Mexico, shall be recognized; and after reimbursing Kansas, and Nebraska, is a provision “that the United States the cost of said survey all the lands to which the Indian title has and sale, and the said sum of three hundred been or shall be extinguished within said ter- thousand dollars placed to the credit of said ritories of Nebraska and Kansas shall be sub- Indians, the remaining proceeds of sales shall ject to the operations of the pre-emption act be placed in the treasury of the United States of fourth September, eighteen hundred and to the credit of the 'civilization fund,' to be forty-one, and under the conditions, restric-used, under the direction of the secretary of tions, and stipulations therein mentioned." the interior, for the education and civiliza10 Stat. 308, 310.
tion of Indian tribes residing within the limBy the act of May 20, 1862, the object of its of the United States.” 14 Stat. 687, 692. which was to secure homesteads to actual The Indians, by the second article of this settlers on the public domain, it was provid- treaty, ceded to the United States other lands, ed, among other things, that all lands sub constituting a tract of 20 miles in width ject to pre-emption entry might be acquired from north to south, off the north side of the by homesteaders without the payment of remainder “of their previous reservation," cash therefor. 12 Stat. 392.
extending its entire length from east to west. And by the act of June 2, 1862, establishing As to this cession it is provided: “Which e land office in the territory of Colorado, and land is to be held in trust for said Indians, for other purposes, it was declared "that all and to be surveyed and sold for their benefit lands belonging to the United States to which under the direction of the commissioner of the Indian title has been or shall be extin the general land office, at a price not less guished shall be subject to the operation of than one dollar and twenty-five cents per the pre-emption act of September 4, 1811, and acre as other lands are surveyed and sold, under the conditions, restrictions, and stipu- under such rules and regulations as the secrelations therein mentioned." 12 Stat. 413. tary of the interior shall from time to time
On the 29th day of September, 1865, an prescribe." 14 Stat. 687, 692. "The proceeds other treaty was made between the United of such sales, as they accrue, after deducting States and the Great and Little Osage In all expenses incident to the proper execution dians. It was amended in 1866, and pro of the trust, shall be placed in the treasury claimed January 21, 1867. By its first article of the United States to the credit of the said the Indians granted and sold to the United tribe of Indians; and the interest thereon, States the lands within the following bound at the rate of 5 per centum per annum, shall ary: "Beginning at the southeast corner of be expended annually for building houses, their present reservation, and running thence purchasing agricultural implements and stock north with the eastern boundary thereof animals, and for the employment of a physififty miles to the northeast corner; thence cian and mechanics, and for providing such west with the northern line thirty miles; other necessary aid as will enable said Indithence south fifty miles, to the southern ans to commence agricultural pursuits under boundary of said reservation; and thence favorable circumstances: provided, that 25 east with said southern boundary to the place per centum of the pet proceeds arising from of beginning: provided, that the western the sale of said trust lands, until said perboundary of said land herein ceded shall not centage shall amount to the sum of $80,000, extend further westward than upon a line shall be placed to the credit of the school commencing at a point on the southern fund of said Indians; and the interest thereboundary of said Osage country one mile east on, at the rate of 5 per centum per annum, of the place where the Verdigris river crosses shall be expended semi-annually for the